Relatives hold pictures of their beloved during a March 6, 2009 march in Bogota against the “false positive” killings and enforced disappearances allegedly carried out by Colombian authorities between 2002 and 2008. 

© 2009 Mauricio Duenas/AFP/Getty Images

(The Hague) – The prosecutor’s office at the International Criminal Court (ICC) has important leverage to encourage countries to investigate and prosecute grave international crimes, Human Rights Watch said in a report released today.

The 181-page report, “Pressure Point: The ICC’s Impact on National Justice,” examines aspects of the ICC Office of the Prosecutor’s practices in its preliminary examinations, which determine whether the court’s criteria to open a full investigation are met. Human Rights Watch found serious obstacles to justice in national courts, and mixed success in spurring progress in domestic prosecutions through the office’s interactions with authorities in Guinea, Colombia, Georgia, and the United Kingdom. But Human Rights Watch concluded that the office’s engagement can help make an important contribution.

“Twenty years after the Rome treaty, the ICC’s burgeoning caseload and limited resources underscore the need for fair and effective domestic prosecutions,” said Elizabeth Evenson, associate international justice director at Human Rights Watch. “More ICC member countries should support the prosecutor’s efforts to encourage successful local proceedings.”

The report draws heavily on Human Rights Watch interviews with more than 140 government officials, representatives of nongovernmental and intergovernmental organizations, and ICC officials.

The ICC is a court of last resort, stepping in only where national authorities are unwilling or unable to genuinely prosecute serious international crimes. The ICC’s limited resources mean that even where the court opens investigations, it should work with national authorities to bolster domestic cases to promote a comprehensive approach to justice.

The ICC prosecutor can have particular influence during preliminary examinations, a step before the opening of a formal ICC investigation. These examinations can propel countries to pursue their own investigations and prosecutions, eliminating the need for the ICC to step in, Human Rights Watch said.

Four-phase approach to preliminary examinations

The ICC prosecutor engages with national authorities to encourage domestic trials only in certain circumstances that meet specific criteria, including whether national efforts already exist, or the government has made a commitment to carry out national efforts. Of the four countries reviewed, the ICC prosecutor’s office has had the most significant role in Guinea, followed by Colombia, and a far more limited role in Georgia. In the United Kingdom, where the examination concerns alleged war crimes by UK armed forces in Iraq against detainees in its custody, the office, consistent with its policies, had not yet sought to encourage national proceedings during the period covered by the Human Rights Watch research.

In December 2017, a panel of judges in Guinea concluded its domestic investigation of a September 2009 attack by security forces on opposition supporters and referred the case for trial. Progress in the seven-year-long investigation was halting, and the trial has yet to be scheduled. But the ICC prosecutor’s intense engagement with Guinean authorities – including more than a dozen visits to the country and identifying specific investigative steps needed, like interviewing key witnesses – has helped motivate progress. Other actors, including victims’ associations and UN experts, have also played a key role.

Such efforts should be replicated to a greater degree in the office’s other preliminary examinations, Human Rights Watch said. In Colombia, the ICC prosecutor’s office pressed the government on the need for accountability for “false positive” killings, the thousands of unlawful killings between 2002 and 2008 that military personnel officially reported as lawful killings in combat. Hundreds of cases were brought nationally against low and mid-level soldiers.

But the ICC prosecution’s broad statements in public and in meetings with government officials did not set out specific findings and benchmarks, providing insufficient pressure on authorities to act more decisively in cases against high-level officials, Human Rights Watch said. There are signs this approach is changing, including when the current ICC prosecutor, Fatou Bensouda, was in Colombia in 2017. During that visit, she publicly identified gaps in the information authorities provided about national prosecutions.

“The ICC prosecutor’s office should tailor its approaches in each preliminary examination,” Evenson said. “But to avoid the appearance of double standards, the office needs to be clear about its activities. It also needs the financial resources to adapt its work through frequent engagement in these countries with officials and civil society.”

Expectations for the prosecutor’s office need to be realistic, Human Rights Watch said. Across all four countries, the absence of sufficient political will to deliver justice domestically posed a steep obstacle. While there are national investigations in all four countries, for the most part, only Colombia has carried out relevant prosecutions. Leaving enough space to national authorities to act, while being prepared to step in if they do not go forward, is a difficult balancing act.

The ICC prosecutor opened a preliminary examination just after the August 2008 armed conflict between Georgia and Russia over the South Ossetia region, but only opened a full-blown investigation in January 2016, after authorities in Georgia abandoned their investigations. Stronger engagement with nongovernmental groups and more pressure on the Georgian authorities to be transparent about the status of their investigation may have helped the ICC prosecutor conclude sooner that its own investigations were warranted, limiting delays in victims’ access to justice, Human Rights Watch said.

Greater transparency about national proceedings is also needed to strengthen partnerships with local groups, which can be key allies. The ICC prosecutor could also press government authorities to provide more information about the status of investigations to these organizations. It would strengthen their advocacy and help the ICC verify government claims about its progress. In some cases, involvement by victims in proceedings and media coverage can also help mount pressure on authorities.

“The ICC prosecutor cannot go it alone when it comes to sparking progress toward national justice efforts,” Evenson said. “Effective relationships between the ICC and activist groups, UN agencies, national authorities, and donor governments are needed to mobilize justice at the national level.”